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R v Bako [2023] SBHC 3; HCSI-CRC 408 of 2022 (10 March 2023)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Appeal Case No. 408 of 2022

REGINA

V

ELLISON GITO BAKO

Date of Hearing: 10 March 2023
Date of Decision: 10 March 2023

Mr Taupongi for the Appellant
Mr Apaniai for the Respondent

APPEAL AGAINST DISMISSAL OF CHARGES

1. Pastor Ellison Gito Bako (pastor Bako), Respondent contested the national general elections held on 3^rd April 2019. Pastor Bako contested the East Honiara constituency seat under the banner of National Transformation Party of Solomon Islands (“NTPSI”). Respondent was the runner up to the winner of that electoral seat.
2. Respondent was charged with an offence under the Electoral Act 2018 (No 6 of 2018), for failing to submit a “statement of accounts” specifying income received and expenses incurred to contest the East Honiara constituency seat. Respondent was found guilty without full trial on his entering of an early guilty plea. At mitigation and sentencing, the trial Magistrate dismissed the charges and imposed no punishment. The trial Magistrate was acting under discretionary powers vested on him under Section 35 of the Penal Code Act (Cap 26).
3. Appellant was dissatisfied with the decision of the Magistrate delivered on 29/08/2022 and filed petition of appeal on 9/09/2022, raising 3 grounds of appeal: -
   • (i) The overall decision of the Magistrate did not meet the justice required in the case.
   • (ii) The Magistrate erroneously applied Section 35 of the Penal Code, when he discharged the Respondent without conviction and punishment.
   • (iii) Magistrate erred in law when he failed to take into account important matters such as: agreed facts consented; the defendant did not comply with the electoral laws to file and submit his statement of accounts; instead put too much emphasis on the character and standing of the Respondent.

Principle of law governing criminal appeals against sentence

4. The starting point is the authority of Buruka^[1], where the High Court relevantly stated: -
   • “It has been a well-established rule that an appellate court will not interfere with the trial judge’s discretion in passing sentence unless it is manifestly excessive or manifestly insufficient because the trial judge has acted on a wrong principle or has clearly overlooked or understated or overstated or misunderstood some salient feature of the evidence. The authority for that proposition in Solomon Island is the case of Saukoroa v R [1985-1986] SILR 272 which was later followed in Berekame v DPP [1985-1986] SILR 272...” (My underlining)
   • Has the Magistrate acted on a wrong principle or was wrong in law or overlooked, or understated or overstated or misunderstood some salient features of evidence?
5. Court will first consider appeal grounds 2 and 3 together to answer the Buruka principles.

Appeal ground 2

6. Appellant contend that the Magistrate erroneously applied Section 35. Section 35 of the Penal Code Act (Cap 26) states: -
   • “Where in any trial, the court thinks that the charge against the accused person is proved but is of the opinion that, having regard to the character, antecedents, health or mental condition of the accused or to the trivial nature of the offence or to the extenuating circumstances in which the offence was committed, it is not expedient to inflict any punishment, the court may, without proceeding to conviction, make an order dismissing the charge either absolutely or conditionally.” (My underlining)
7. I read Section 35 many times. I read how the Magistrate exercised discretion under Section 35 in his decision many times. And I have to say I have not detected any error. Even where the Magistrate says character was not a factor, he weighed heavily to exercise his discretion, under Section 35, but character is a factor he could have rightly weighed in to exercise his discretion under Section 35 to decide as he did to absolutely dismiss the charge. The factor the Magistrate weighed heavily under Section 35 to dismiss the charge is “extenuating circumstance” in which the offence was committed. The Magistrate was of the considered view that it was not expedient to inflict any punishment due to extenuating circumstances. Hence the Magistrate found the Respondent guilty but instead made an order to dismiss the charge absolutely without conditions.

What is the extenuating circumstance(s)?

8. This is what the Magistrate said when he considered the factor of “extenuating circumstance”: “...the extenuating circumstances in which the offence was committed in particular, the fact that the wrong form was filled in and submitted with the wrong authority has weighed heavily towards exercising the courts discretion under S.35 of the Penal Code”^[2].
9. Court took time to read the appeal book and concurred with the Magistrate that there is in fact extenuating circumstance. Respondent had every genuine intention to comply with the law, took early affirmative actions and was serious to abide by the law on submission of statement of accounts, under Section 69 (1) (a) and (b) of the Electoral Act 2018 (No 6 of 2018). Respondent was serious and demonstrated early intention to abide because, the evidence shows that the national general election was held on 3^rd April 2019. Respondent and his supporters filled in the form, which they thought was the proper form on 5^th April 2019, only 2 days after the holding of elections^[3]. Respondent and those who supported him had lodged the filled in form (wrong form) to the wrong authority (the Political Party Commission – “PPC”), well before the 90 days lapsed under Section 69 (1) (a) and (b) of the Electoral Act 2018. There was however a mistake along the way in executing a genuine and early serious intent to comply with the electoral law.
10. My google search tells me that extenuating circumstance or extenuating means mitigating factors - facts or details that are important to fully understand a situation. With this understanding the action the person took might be viewed as less severe or that the person’s culpability in those actions diminished.
11. That is exactly why the Magistrate dismissed the charges. Because he felt on the facts before him that the Respondent’s actions against the election offences were less severe - he had genuine intentions to comply. But unintentionally did the wrong thing (wrong form completed and lodged with the wrong office). I repeat and reaffirm the preceding paragraphs 7, 8, 9 and 10 to say the Magistrate felt the culpability of the Respondent in those circumstances should diminish. Hence, he exercised discretion under Section 35 to dismiss the charges.
12. The Magistrate could have in addition weigh in heavily but he did not, the factor on character of the Respondent – church pastor, chairman of the second largest grouping of churches (SIFGA) and founder and member of a political party (NTPSI).
13. Accordingly, I dismiss appeal ground 2.

Appeal ground 3

14. Magistrate erroneously applied the law, when he failed to take into account, important matters such as agreed facts, Respondent did not comply with the electoral laws to file and submit his statement of accounts, instead put too much emphasis on the character of the Respondent. This appeal ground with respect was misconceived. First, character was not a factor in Section 35 that weigh in heavily to influence the Magistrate’s decision to dismiss the charges. I alluded to above that he was entitled to use character, but he chose not to rely on an English authority of Millberry v R^[4].
15. Secondly, it is incorrect to say the Magistrate did not consider the agreed facts. He did. The first and second pages of the decision contains nothing but the agreed facts^[5]. Owing to those agreed facts and premised on the Respondent entering an early guilty plea, the Magistrate concluded that the charge against the Respondent was proven. And the Respondent was guilty. This is what the Magistrate says in conclusion: “Whilst the Court is satisfied that the offence has been proved by the guilty plea entered, having regard to the character of the accused but more significantly, to the extenuating circumstances in which the offence was committed, I am of the view that, it is not expedient to inflict punishment in this case; and therefore no conviction is recorded. The charge is therefore dismissed absolutely”^[6].
16. Whilst the Respondent was proven guilty of the offence charged, the Magistrate did not enter conviction and punishment, but instead dismissed the charges under Section 35 of Penal Code Act (Cap 26). Nothing is wrong with that in law. To the contrary that is permissible in law pursuant to the said Section 35.
17. Thirdly, to say that the Magistrate did not consider that the Respondent did not comply with the electoral laws to file and submit his statement of accounts is far from the truth. I found above that the Magistrate recited all of the agreed facts, together with the entering of an early guilty plea, he then found the charges proven and Respondent guilty but subsequently dismissed the charges under Section 35. One of the agreed facts the Magistrate took into account was agreed fact no. 8 – “The defendant did not submit his report to the commission until 20^th July 2019 (the date where the 90 days period lapsed).^[7]” The Magistrate continued to take into account agreed fact no. 9 - where he says, “After the 90 days lapsed, the defendant did not file and submit his statement of account on the expenses during the election period to the Chief Electoral Officer (CEO) of the Commission up until he was formally charged.^[8]”
18. Fourthly I reject the argument that the Magistrate disregarded the agreed facts and relied mainly on sworn statement evidences Respondent used at sentencing and mitigation, saying the Crown did not rebut those evidences. Like I say in paragraph 15, Magistrate considered the agreed facts and additionally correctly concluded that the materials Respondent used at mitigation and sentencing were unrebutted. The two are different – agreed facts at trial and unrebutted evidence at mitigation and sentencing. Magistrate was entitled to consider both, as he rightly did. If there was conflict, agreed facts would prevail (Gitoa case). Here there was no conflict because evidence in mitigation was not rebutted. So, I refuse the arguments in paragraphs 15 – 27 of appellant’s written submission.
19. Accordingly, I found no error as contended in appeal ground 3. I dismiss this appeal ground.

Appeal ground 1

20. Appellant contend that the Magistrate’s overall decision did not meet the justice required in the case. I will examine the various points appellant raised in the written submissions on this ground of appeal.
21. The first point is the Magistrate did not consider, that the case was about breach of the Electoral Act 2018. A legislation that seeks to promote transparency and accountability of the electoral and campaign process, at election times. That the legal requirements to present “statement of accounts” (sources funds came from and expenses incurred) is a significant measure to counter any illegal practices during election campaigning. I reject this point on a closer examination of the Magistrate’s thoughts, reflected in the decision. He was thinking seriously about the severity of the offence, the importance of the law, its purposes and the need to have deterrence from a newly made law. This is why the Magistrate wholly adopted the agreed facts in his decision (See whole of page 1 right through to the middle top of page 2 of his decision). This is why the Magistrate made the conclusion that the charges were proven via the agreed facts coupled with the Respondent’s entering of an early guilty plea. Magistrate’s thoughts could be deduced from the decision as follows: -

“The only feature that aggravates this offending is that despite the reminders sent by the SIEC through radio, print and social media, the accused was not prudent in ensuring that the appropriate forms are filled and a report is submitted to the Electoral Commission’s office”^[9].
“I believe that the accused was fully aware that when he made the decision to engage in the election campaign as candidate, there are legal requirements that must be satisfied before, during or even immediately after the election. This is one of such requirements. Because of such legally imposed obligations of the accused as a candidate, he should remain vigilant that he fulfils this legal requirement under the Electoral Act 2018. Over trusting others to do things on one’s behalf without monitoring or questioning them can result in situations that may not be desirable to oneself such as what happened on this instant.^[10]”
“The prosecution submitted that the court should consider the circumstance of the case and the principles of general and specific deterrence when deciding the sentence to be imposed in this case.^[11]”

22. The Magistrate considered the merits of the case, including deterrence and the significance of the new law. For he says – “I have no doubt that the penalty prescribed for this offence aims to deter non-compliance with this particular requirement under the Electoral Act 2018. This is a new piece of legislation and the accused and others are the first to be prosecuted under this new law. Because of this there is no comparative cases available against which to see what form of sentence is applicable and what length of imprisonment or amount of monetary fine to be imposed in this case. Subsequently, there is nothing to suggest that non-compliance with this requirement by past election candidates is prevalent and thus the principle of deterrence, although, must be considered, may not really have a significant influence on the subsequent outcome of this case.^[12]” I am satisfied the Magistrate was fully aware of the purposes of the new law – transparency and accountability that is why based on agreed facts and entering of guilty plea he found the charges were proven – meaning the Respondent was guilty of the charges – failing to file statement of accounts with the Solomon Islands Electoral Commission (“SIEC”) within the required time period.
23. What happened was Respondent’s Counsel run a very strong argument in mitigation and sentencing submissions under Section 35^[13], where it allows the Magistrate to pronounce that the charges against the Respondent were proven – meaning he was guilty because of the established agreed facts and guilty plea, but then did not proceed to convict the Respondent, instead dismissed the charges and imposed no punishment, utilising Section 35. That’s what the justice of the case required as it transpired at sentencing and mitigation submissions.
24. The second point was if election candidates are given absolute discharge simply because of an extenuating circumstance, there is no deterrence. Compliance with the requirements will be shunned and candidates can escape responsibility with any excuse. This argument overlooks an apparent shameful thing the pastor went through – arrested, investigated, charged for a crime and proven guilty by the Court. Respondent did not escape responsibility for his failure. Respondent faced up with the authorities – SIEC (Complainant), Police and DPP (Prosecutor) and the Magistrate Court (Magistrate/Judge). And through the said authorities, he was proven guilty of the charges laid against him – that is to say pastor Bako broke the electoral law, by not submitting his statement of accounts on time. Therefore, pastor Bako was not transparent and accountable about his sources of funding and expenses during election campaign. I suppose that was an adequate shameful punishment for a pastor to have undergone (being subjected to the criminal process). And so, deterrence element of the criminal process was attained, notwithstanding that the Magistrate did not proceed to convict and punish the Respondent. Crown was occupied with conviction and punishment forgetting that proven guilty is already a shameful act of punishment for a pastor. The appropriate sentencing option run in mitigation and accepted by the Magistrate, is to dismiss the Respondent of the charges, a discretionary power bestowed on the Magistrate under Section 35.
25. The other point pressed by the appellant is the Magistrate failed to take into account the agreed facts consented by parties. I shall say no more on this, but repeat and reaffirm what I already covered above in paragraphs 15 and 18.
26. A further point pressed by the appellant is the absolute dismissal and non-conviction for the charges does not meet the justice merited for this case. Again, I shall say no more on this than to repeat that the justice merited for this case, at mitigation and sentencing, is to invoke Section 35 as the Magistrate rightfully did in law – use of his discretion to dismiss the charges based on extenuating circumstances. I repeat what I already said above in paragraphs 7 – 11.
27. Appellant also submit deterrence should be considered and a punishment imposed to prevent others from offending. I shall say no more on this except to re-echo my earlier comments that the Magistrate exercised proper discretion to dismiss the charges against the Respondent based on strong mitigation submission by Respondent. And that having to face the authorities for his failure and having had shame to be proven guilty in Court is already a deterrence to any intending offender. That the authorities will come after them, whether they be a pastor or political party leaders or other persons with standing in the community. That no one is above reproach (repeat and reaffirm paragraph 24).
28. The last point Crown pressed in submission is that the Magistrate put too much weight on the character evidence (unchallenged) put forward by the Respondent in mitigation and not the agreed facts. I shall repeat what I say above in paragraphs 7, 12, 14, 15 and 18. And add that the Magistrate was entitled to rely on character and extenuating circumstance or evidences, put forward at mitigation and sentencing submissions. But on character the Magistrate placed little or no weight at all.
29. I found no error in law by the Magistrate. I found no error in the overall merit and justice of the decision. I reject all 3 appeal grounds. The decision of the Magistrate shall stand. Respondent shall fill the proper form and submit to the SIEC and say with a cover letter: “I have been to Court. I was proven guilty of the electoral offence under Section 69 (1) (a) and (b) of the Electoral Act 2018, for failure to submit my election campaign statement of accounts. But the charges were dismissed by the Magistrate due to extenuating circumstances. And the High Court on appeal by the Crown saw fit that I submit my statements of account outside of time, because I initially intended to comply but failed to fill the correct form and lodged to the wrong office”.

Obiter remarks

30. I would also say in conclusion that the intent by parliament to curtail election expenses to $50,000.00, hence the filing of statement of accounts is a noble one. But the mechanism in the law for curtailing the accountability of candidates is a very weak one. You cannot expect candidates to fill in forms and truly declare the cost of their campaigns. Logically we can tell that to run in general elections cost more than $50,000.00. But when candidates fill in the forms, they will try to put it below $50,000.00. Just imagine a candidate who chartered a boat to transport his supporters to vote in the village constituencies. Chartering a boat cost more than $50,000.000. But the candidate will fill the forms to show the limit is $50,000.00. Will they be honest? The proper way to do it is to require the public to take court action and prove that the candidate had spent more than $50,000.00 in running his election campaign and hence offend against the limit of $50,000.00 in the election campaign. Another way is for candidates to make a statutory declaration on their statement of accounts. If they should declare false statements then they will be prosecuted for making a false statutory declaration. There needs to be a reform to tighten up a good intention on reporting on finances earned and spent at election campaigns to attain transparency, accountability and stand clear from corrupt or illegal practices.

Conclusion and Orders

The reliefs sought in the appeal are answered as follows:-

• (i) I uphold the overall decision by Deputy Chief Magistrate delivered on 29/08/2022.
• (ii) I do not enter conviction or impose an appropriate sentence neither will I remit the matter back.
• (iii) Under the relief sought for other orders deemed appropriate by this Court; I will repeat the same orders made in paragraph 29 above requiring the Respondent to submit his statement of accounts with a covering letter to SIEC. Court will vet the covering letter before sending the statement of accounts to SIEC.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

^[1] Buruka v Reginam [1991] SBHC 53; HC-CRAC 031 of 1991 (16^th December 1991).
^[2] See Magistrate’s decision, paragraph 2, line 2, at page 7 of Appeal Book.
^[3] See sworn statement of Leah at Exhibit A, where the Respondent signed onto a wrong form on 5/04/2019.
^[4] See paragraph 6 of decision of the Magistrate at page 6 of Appeal Book. See also paragraph 2 of the last page of decision at page 7 of Appeal Book.
^[5] See page 1 to top half of page 2 of the Magistrate’s decision at pages 4 and 5 of Appeal Book.
^[6] See last paragraph of Magistrate’s decision at the last page of the decision on page 7 of Appeal Book.
^[7] See paragraph 2 of Magistrate decision at page 5 of Appeal Book.
^[8] See paragraph 3 of Magistrate decision at page 5 of Appeal Book.
^[9] See paragraph 1 of Magistrate decision at page 6 of Appeal Book.
^[10] See paragraph 2 of Magistrate decision at page 6 Appeal Book.
^[11] See paragraph 3 of Magistrate decision at page 6 Appeal Book.
^[12] See paragraph 7 of Magistrate decision at page 6 and 7 of Appeal Book.
^[13] Strong argument in sentencing and mitigation means evidence on character and extenuating circumstances Respondent used were unrebutted.